A Schema Development for Brazilian Legislative Acts

A Schema Development for Brazilian Legislative Acts Andrea Marchetti∗ , Isabella Martins Garcia Leite, Maurizio Tesconi∗ , Salvatore Minutoli∗ , Marco Rosella∗

∗

CNR Institute for Informatics and Telematics

Abstract. This is a brief of the research activities involved in the development of a XML Schema for Brazilian Legislative acts. Keywords: XML, legislative, Brazilian acts

1. Introduction To start the development of a Schema for Brazilian legislative acts we needed some basic information: − The rules related to the Brazilian legislative drafting. − The tools and criterions used to search for acts in the Official Web site of the Brazilian Government. − The electronic format used for legislative acts. The first point is fundamental for the drafting of the Schema. The other two are useful to understand the current technological state of the Brazilian juridical documentation. Our first concern was to find out if a Schema of the Brazilian laws already existed or if it were a matter of some ongoing project. In this project we tried to exploit our recent work “Norme In Rete” where we participated in the definition of an XML Schema for Italian Laws. Therefore we will occasionally refer to the structure of Italian Laws so as to detect which elements could be reused for the new Schema. 2. Brazilian acts related to the rules of legislative drafting The first research has been done with the goal of finding the rules related the Brazilian legislative drafting. For this purpose we visited all the websites of the bodies allowed by the Constitution to legislate, as described in its article 61. These bodies are: 1. Chamber of Deputies

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2. Federal Senate 3. Presidency of the Federal Republic of Brazil 4. Supreme Federal Tribunal (STF) 5. Superior Tribunal of Justice (STJ) 6. General (Procure) of the Republic 7. Superior Electoral Tribunal 8. Superior Tribunal of the Work 9. Superior Military Tribunal. Afterwards we found the email addresses of five deputies and five senators of the Republic1 published in their related websites and we asked them about the existence of legislative technical instruments. It was the eve of the most important election of the nation, the one in which Brazilian people choose the President of the Republic, all the federal deputies, the 2/3 of members of the Senate and the leaders of all the 26 member states of Brazilian federation, as well as the members of the legislative houses of all the 26 federal states. Although a big number of the parliamentarians were in electoral campaign for the renewal of their legislative mandate, we received replies and documents in electronic and paper format by most of them.2 After the researches in the websites cited above and the review of the information received from parliamentarians, we finally characterized the Brazilian legislative acts (on a federal level) that contain rules for legislative drafting. These are: 1. Complementary Law 95 of 26th February 1998 2. Decree 4176 of March 2002 3. Manual of writing of the Presidency of the Republic. 1 The criterions used for the choice of the nominative of parliamentarians were: national projection, certified juridical knowledge to be the President of a legislative house: Chamber of Deputies or Federal Senate. 2 Thanks in particular to Federal Deputy Doctor Michel Temer, President of the Chamber of Deputies, Doctor Leany Barreiro de Sousa Lemos, Chief of the Gabinet of Senator Roberto Freire and Doctor Gileno, alderman of the Federal Deputy Augusto Franco Neto.

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2.1. The Complementary Law 95 of 26th February 1998 The most important Brazilian legislative drafting rule, is about the elaborating, editing, amending and consolidating laws, in compliance with the unique paragraph of art. 59 of the Federal Constitution, and establishes rules for the consolidation of the normatives cited in it. The first remarkable aspect to analyze is that of the normative specie that regulates the subject: it’s about the Lei Complementar (Complementary Law). The Complementary Law is one of the seven normative species established in article 59 of the Constitution, and since it is founded directly on the Constitution, is considered a primary norm. The Complementary Law is a normative specie, to which the Constitution expressly reserves a specific subject, and needs the absolute majority for its approval. Despite the actual doctrinaire agreement about the fact that Complementary Law is not to be considered hierarchically superior with respect to the ordinary laws, for a long time this argument has generated controversies. The thesis of the superiority of the Complementary Law was founded on the fact that it is a law aimed to complement the Constitution needing an absolute majority for its approval, whereas the ordinary law is approved with simple majority. Nowadays the prevailing doctrine is clear about the horizontality and equality of the normative species contained in article 59 of the Brazilian constitution, because the Complementary Law differs form the other only on its subject and qualified quorum for its approval. Obviously amendments to the Constitution are an exception, because after its approval, the Constitution amendment integrates the Constitution itself. Analyzing the constitutional text we can understand that the constitutional lawmaker chose some subjects needing a careful consideration and wider political agreement. The setting of a qualified quorum for the approval of the Complementary Law project shows the need for a qualified agreement for the approval of the chosen topics. This is the case of the unique paragraph of art. 59 when it established that the Complementary Law will discipline the elaboration, editing, amending and the consolidation of the laws. The resort to the Complementary Law as a juridical mean of regulation of the activities for legislative drafting, points out, without doubts, the big importance given to the subject and the political will for the effective improvement of the quality of the legislation.

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2.1.1. Object of the Complementary Law 95 of the February, 26 1995 The topic of this law is cited in its first article: the elaboration, editing, amending and the consolidation of laws. Its application sphere is the set of normative species listed in article 59 of the Constitution: − Amendments to the Constitution, − Complementary Laws, − Ordinary Laws, − Legislative Decrees, − Delegation Laws − Temporary Measures − Decrees − Regulation Acts sent to the organs of the federal Executive. It contains nineteen articles organized in four chapters named respectively: preliminary dispositions; techniques for elaboration, editing and amending of the laws; consolidation of laws and other normative acts; final dispositions. From the contents of this law we can understand that the structure of the Brazilian Law differs from the Italian one both on the formal structure and the functional point of views. Most of the information used for the definition of the Schema originates from this law. 2.2. The Decree 4176 of March 2002 The Decree 4176 of March 2002, establishes norms and directives for elaboration, editing, consolidation and presentation to the President of the Republic of normative acts projects competing to the organs of the Federal Executive. It is a decree and, as such, it is a secondary normative specie, that specifies what is stated in the Complementary Law 95 of the February 1998, on the subject of the drafting rules about the law plans competing to the Federal Executive. Since it is specific, besides repeating the rules of the above-cited Complementary Law, it is more detailed, containing sixty-four articles and two annexes with a lot of suggestions for the drafting, in check list form. A particularity of this decree is that it contains very detailed indications about the form and the style to use for the law text visualization.

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Among other things, this decree takes into account the use of the Internet to send law plans to the Presidency for their evaluation 2.3. Manual of writing up of the Presidency of the Republic The Complementary Law 95/98 and the Decree 4.176 of March 2002 above analyzed are, without doubts, the consecration of the rules and recommendations contained in the Manual of Editing of the Presidency of the Republic. Edited in the 1991, in the sphere of the Presidency of the Republic, the Manual constitutes the first attempt by the government to start the setup and standardization of the editing rules for acts and official communications, simplifying the administrative language and repressing archaic aspects. Promptly followed by all the organs that compose the Brazilian public administration, the Manual uniformed the language and the structure of the official communications and the normative acts enacted in the federal executive, providing both a style code and a legislative drafting manual. It is subdivided into two parts, the first under the authority of diplomatic Nestor Jose Foster Junior and the second under the authority of the Manual. The first part deals with the official communications, beginning from their essential aspects, giving the definition of the official editing and the principles that must be followed in the elaboration: impersonality, the use of the cultured form of the language, clearness, briefness, formality and uniformity. The first part also presents the typology of the official communication, defining every species and their goals; uniforms the structure, displays models, introducing, at the end of this part, grammar elements to use in the official editing. The second part is about the elaboration and editing of the normative acts competing to the executive, their definition and exemplification and the legislative procedure. According to Pedro Parente, Chief of the Civil House of the Presidency of the Republic of the government Fernando Henrique Cardoso3 the edition of the Manual gave rise to a monitoring system for the edition of the normative acts, allowing a more careful thinking over proposed normative acts, clearly characterizing the problem or situation that generated them, their expenses, their practical effects, the probability of juridical disputes, their legality and constitutionality and their consequences on legal order. After eleven years from the publication of 3

President of the Federal Republic of Brazil from 1994 to 2002.

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the first edition, the need for a revision and update of the Manual raised to conform to changes in the handled topics. The second edition of the Manual of Editing of the Presidency of the Republic, available in the site http://www.planalto.gov.br has been recently published in the Portaria N 91, in December 04, 2002 by Chief of the Civil House of the Presidency of the Republic. The second edition maintains its original structure. In the first part the principal alteration has been the adjustment of the editing forms and communication with the public administration by means of innovative informatics technologies. The second part, concerning the normative acts and the legislative procedure, has been largely modified, to comply to the constitutional alterations and to the rules dictated from the Complementary Law 95/1998 and the Decree 4.176/2002.

3. The formal structure of a Brazilian law The Brazilian law is structured in three principal parts: preliminary part, normative part and final part.

Figure 1. The Principal Components of a Brazilian Law

3.1. Preliminary part The preliminary part includes the epigraph, the ementa, the preamble, the enunciation of the object and the indication of the application scope of the normative dispositions. The epigraph corresponds to the heading of the Italian law (except the Title), indicating the denomination of the normative species, sorting order and promulgation date. The ementa is a summary of the content of the normative act. The definition of preamble of Brazilian law is different from the Italian one, since it is only used to indicate the competing institution for the act procedure

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and its legal base. The Brazilian preamble matches the system of Italian promulgation, while Italian preamble, only used for non-legislative acts, matches the exposition of Brazilian theme. The enunciation of the object and indication of the application scope of the normative disposition are showed in the first article of every law text.

Figure 2. Preliminary Part Schema

Figure 3. Example of a Preliminary Part

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Figure 4. Example of a Preliminary Part in XML Format

3.2. Normative part The normative part includes the text of the norms with substantial content related with the regulated topic. The articulation of the Brazilian law includes the last element of the preliminary4 part and the normative and final part. Therefore, the first article of the law text will always indicate the object of the law and the related application scope (article 7 of the Complementary Law 95/1998). 3.2.1. Article The basic unit of articulation is the article, container of the norm text and indicated by the abbreviation “Art.” 5 The content of every article of the law must deal only with a unique subject and principle. 4 The one related to the statement of the object and the indication of the application sphere of the normative disposition, indicated in the first text of every normative act (see art. 7 of the Complementary Law 95/1998) 5 In the Italian law, the article is not the container of the norm text, but of a rubric text (despite it is optional the rubric in an article is often used in Italian law). The norm is described in the paragraph The rubric of the article in the Brazilian legal system is not mandatory, but it’s often used in unique texts and codifications.

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The article can be divided into paragraphs or into parentheses; the paragraphs in turn can be divided into parentheses, the parentheses into alinea and the alinea into itens. The paragraphs express the complementary aspects of the enunciated norm in the caput of the article and the exceptions to the rules established by them. The parentheses, alinea and itens contain enumerations and distinctions. Since the article and the elements that constitute it are different from the Italian model, we introduce, as an example, a fragment of the article 5th of the Brazilian Constitution of 1988: Art. 5◦ Todos são iguais perante a lei, sem distinção de qualquer natureza, garantindose aos brasileiros e aos estrangeiros residentes no pais a inviolabilidade do direito à vida, à liberdade, à igualdade, à segurança e à propriedade, nos termos seguintes: I - homens e mulheres são iguais em direitos e obrigações, nos termos desta Constituição; (. . . ) LXXVI - são gratuitos para os reconhecidamente pobres, na forma da lei: a) o registro civil de nascimento; b) a certidão deóbito; LXXVII - são gratuitas as ações de “habeas-corpus” e “habeas-data”, e, na forma da lei, os atos necessários ao exercício da cidadania. § 1◦ - As normas definidoras dos direitos e garantias fundamentais têm aplicação imediata. § 2◦ - Os direitos e garantias expressos nesta Constituição não excluem outros decorrentes do regime e dos princípios por ela adotados, ou dos tratados internacionais em que a República Federativa do Brasil seja parte.

Figure 5. Article Schema

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3.2.2. Aggregation of Articles The aggregation categories, specified in the parenthesis V of art. 10 of the Complementary Law, are subsection, section, chapter, title, book and part. A group of articles forms a subsection; a group of sections forms a chapter;

Figure 6. Normativa Schema

chapters form a title; titles form a book and books possibly a part (because the latter can be split into general part and special part). The article, as described by Gilmar Mendes6 , is “a unidade básica para a representação, divisão ou agrupamento de assuntos num texto normativo”, and, as such, is the unique element essential to a normative text, so the existence of the other groups are not mandatory, being part, as said by Gilmar Mendes, of the “sistematizaçao das leis mais complexas”, as, for example, the codifications. Making an example, we see below a part of the structure of the Federale Brazilian Constitution of 1988, without the Book and Part groups:

6 Gilmar Mensdes in “Questões Fundamentais de Tecnica Legislativa”, published in the Revista Dialogo Juridico, Ano I – Vol 1 – N 5 – August 2001 – Salvador – Bahia - Brasile

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T´ ITULO III Da Organização do estrado CAP´ ITULO I Da Organização Pol´ıtico-Administrativa (Arts. 18 e 19) CAP´ ITULO II Da União (Arts. 20 a 24) CAP´ ITULO III Dos Estados Federados (Arts. 25 a 28) CAP´ ITULO IV Dos Munic´ıpios (Arts. 29 a 31) CAP´ ITULO V Do Distrito Federal e dos Territ´ orios Seçao I Do Distrito Federal (Art. 32) Seçao II

As we can see, despite the Complementary Law doesn’t contemplate the rubric element, it is a part of the Brazilian legislative routine, often used to identify every law group, except for the article. The Brazilian article, in fact, unlike the Italian one, does not usually include a rubric, being it only present, sometimes, in the codification. 3.2.3. Typographical Elements A very interesting aspect that is not present in the Italian Law is the identification, in the Complementary Law 95/1998, of a series of indications about the typographic styles to use for all the types of elements used in the normative part. These characterizations, that allow for a simple location of the single elements, are synthesized in Tab. I. Table I. Part, Book, Title, Chapter

Written in lower case letters identified by roman numbers. In conformity with the Complementary Law 95/1998 parts could be divided in parts expressed in ordinal numbering in full.

Subsection and Section

Written in lower case letters, in boldface or style that emphasize them, identified by roman numbers.

Article

Indicated by the abbreviation “Art.”, followed by an ordinal numbering up to the ninth and cardinal numbering for the following numbers.

Paragraph

Represented by the graphical sign “§”, followed by an ordinal numbering up to the ninth and cardinal numbering for the following numbers. When only a paragraph exists, the expression “unique paragraph” must be used.

Parenthesis

indicated by roman numbers.

Aliena

indicated by lower case letters.

Iten

indicated by arabic numbers

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3.3. Final part The final part includes: 1. Dispositions pertinent to the necessary measures to the implementation of the substantial content norm; 2. Temporary dispositions; 3. The effective clauses; 4. The revocation clauses; 5. The fecho conclusions.

Figure 7. Final Part Schema.

4. The Formal Aspects The Complementary Law 95/1998, besides the formal and systematic structure of the dispositions, enunciates also some rules about the morphological, syntactic and semantic aspects, when, in its article 11, enunciates norms that must be observed to achieve clearness, precision and logical order in normative dispositions. The term normative disposition cited in the Complementary Law is used as a reference to those contained in articles, paragraphs, parentheses, alinea or itens.

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4.1. Clearness In order to obtain clearness, words and expressions of common use and meaning must be used (except when the norm is about a technical topic), using short and concise sentences, uniformly using the verbal tenses, giving the preference to present and past tenses and wisely employing the punctuation, avoiding stylistic excesses. 4.2. Precision In order to obtain precision the above-said law suggests to correctly use the language with the goal of allowing the perfect understanding of the objective of the law; to always use the same word to express the same idea all over the text, avoiding the use of synonyms and words that cause ambiguity; to not use regional expressions; to use only common acronyms, accurately defining their meaning when used for the first time; to write in letters the references to numbers and percentages (except data and laws numbers or in cases the understanding of law text could result difficult). It is important to emphasize that to achieve precision the object of the remission must be explicitly indicated, in place of the expressions “anterior”, “following” or “equivalent”. 4.3. Logical order The logical order is obtained combining, under the aggregation categories, only the dispositions related to the object of the law, reducing the content of every article of the law to only one topic or principle. 4.4. Numbering and other Some particular numbering criterions for articles are dictated in article 12 in the case of alteration, where a new article is inserted. In this case the same number of the article must be used, followed by lower case letters, in alphabetical order, as many times as sufficient to identify the additions. For example we can see the following articles from the Code of Civil Procedure: TITULO IV DA EXECUCAO POR QUANTIA CERTA CONTRA DEVEDOR INSOLVENTE (. . . ) CAPITULO IX DAS DISPOSICOES GERAIS (. . . )

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Art. 786. As disposiçoes deste Titulo aplicam-se às sociedades civis, qualquer que seja a sua forma. Art. 786-A. Os Editais referidos neste Título também serão publicados , quando for o caso, nos órgãos oficiais dos Estados em que o devedor tenha filiais ou representantes. Artigo acrescentado pela Lei 9.462/97 (. . . )

The units that compose the article can be reorganized,: the article will then identified with the “NR” letters. The Section III of the Chapter II states rules about the alteration of the laws.

References A.Marchetti, F.Megale, E.Seta, F.Vitali. Marcatura XML degli atti normativi italiani. I DTD di Norme in Rete. In Informatica e diritto Progetto NIR – Fase 2 “Accesso alle Norme In Rete”, November 2001. F.Vitali, A.Marchetti Using XML as a means to access law documents: Italian and foreign experiences – EuroWeb2001, December 2001. A.Marchetti, E.Seta, G.Gabriele, L.Abba Documenti Parlamentari in XML. In atti XML Italia 2000 pp. 109-135, May 2000.

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